UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. VINCENT CEFALU,

Petitioner,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

CB-1214-13-0187-T-1

DATE: September 8, 2014

Bruce D. Fong, Esquire, and Elisabeth R. Brown, Esquire, Oakland, 

California, Carolyn N. Lerner, Esquire, Washington, D.C.,

and Zahra Karinshak, Esquire, Atlanta, Georgia, for the petitioner. 

Andrew M. Dunnaville and Katherine Meng, Washington, D.C., for 

the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Vice Chairman Wagner has recused herself from this case.

Chairman Grundmann issues a separate opinion.

Member Robbins issues a separate opinion.

ORDER

¶1 This matter is before the Board based on the administrative law judge’s 

(ALJ) order certifying an interlocutory appeal of his determination that, for 

purposes of a prohibited personnel practice (PPP) under 5 U.S.C. § 2302(b)(12), 

the First Amendment constitutes a “law, rule, or regulation implementing, or 

directly concerning the merit system principles [contained in 5 U.S.C. § 2301].” 

The two Board members who are considering this case cannot agree on the 
2

disposition of the issue certified to the Board and therefore issue separate 

opinions on that issue. 1

 However, the two Board members do agree with the 

ALJ’s determination that the Board has jurisdiction over this matter, but for a 

different reason than the one provided by the ALJ. As a result, we MODIFY the 

ALJ’s determination as to the jurisdictional question. This matter is now being

RETURNED to the ALJ for further adjudication consistent with this decision. 

BACKGROUND

¶2 The Office of Special Counsel (OSC) filed a complaint for corrective action 

in which it asserted that the Department of Justice (the agency) committed a PPP 

under 5 U.S.C. § 2302(b)(12) by violating Vincent Cefalu’s rights under the First 

Amendment to the U.S. Constitution when it removed him from his Criminal 

Investigator position. As noted above, this matter came before the Board based 

on the ALJ’s order certifying an interlocutory appeal of his determination that, 

for purposes of a PPP under 5 U.S.C. § 2302(b)(12), the First Amendment 

constitutes a “law, rule, or regulation implementing, or directly concerning the 

merit system principles [contained in 5 U.S.C. § 2301].” 

¶3 On October 5, 2012, the agency issued a decision to remove Cefalu from his 

Criminal Investigator position based on a charge of lack of candor, stemming 

from his subpoenaed testimony during a criminal suppression hearing. Complaint 

File (CF), Tab 7 at 5, 7-8 (Joint Stipulation of Facts). 2

 OSC filed a complaint for 

 1 Therefore, this decision shall not be considered as precedent by the Board in any other 

case. 5 C.F.R. § 1200.3(d). 

2 The removal was to be effective October 9, 2012, but OSC filed a request for a stay, 

which was granted, effective October 23, 2012. CF, Tab 7 at 6; see Special Counsel ex 

rel. Vincent Cefalu v. Department of Justice, MSPB Docket No. CB-1208-13-0006-U-1, 

Stay Order (Oct. 23, 2012). The stay was extended while OSC investigated and sought 

corrective action by the agency, and then, after OSC filed its complaint with the Board, 

indefinitely extended until such time as the Board issues a decision on the pending 

complaint for corrective action or otherwise terminates the stay. See Special Counsel 

ex rel. Vincent Cefalu v. Department of Justice, MSPB Docket Nos. CB-1208-13-0006-

U-5, Stay Order (June 3, 2013), CB-1208-13-0006-U-7, Stay Order (July 16, 2013). 
3

corrective action against the agency, pursuant to 5 U.S.C. § 1214(b)(1)(A), 

(b)(2)(C), alleging that the agency’s decision to remove Cefalu violated his First 

Amendment right to free speech and constituted a PPP under 5 U.S.C. 

§ 2302(b)(12). CF, Tab 1. The agency filed an answer in which it asserted as its 

first affirmative defense that OSC did not have jurisdiction over the matter

because the First Amendment did not constitute a “law, rule, or regulation 

implementing or directly concerning[] the merit system principles.” CF, Tab 4

at 4. The parties submitted a Joint Stipulation of Facts. CF, Tab 7. The ALJ 

noted that there was an issue regarding the Board’s jurisdiction, he directed the 

parties to file briefs regarding the jurisdictional issue, and the parties filed 

responsive briefs. See CF, Tabs 6, 8-9. 

¶4 In his Order Concerning Jurisdiction, the ALJ rejected the agency’s first 

affirmative defense, concluded that the First Amendment constitutes a “law, 

rule[,] or regulation implementing or directly concerning the merit system 

principles,” and found that the Board has jurisdiction over this matter. CF, 

Tab 10 at 12. The ALJ indicated that he found persuasive the “implicit 

acknowledgments by the Board of such jurisdiction,” coupled with the legislative 

history of the Civil Service Reform Act of 1978 (CSRA) and subsequent 

interpretations of that history and the CSRA’s scope by various federal circuit 

courts. Id. Although the ALJ concluded that the Board has jurisdiction over this 

matter, he specifically noted in his order that OSC would ultimately be required 

to prove its case following further development of the record and

adjudication. Id. 

¶5 The agency filed a Motion for Certification of Interlocutory Appeal, OSC 

filed a response in which it only agreed with the agency that this issue satisfied 

the requirements for certification, and the ALJ certified the issue for interlocutory 

review. See CF, Tabs 11-13. We agree that the issue presented satisfies the 

criteria for certification of interlocutory appeal. 5 C.F.R. § 1201.92. 
4

ANALYSIS

The Board has jurisdiction over this matter. 

¶6 Pursuant to 5 U.S.C. § 1214(b)(2)(B), if OSC determines, in connection 

with any investigation, that there are “reasonable grounds to believe that a [PPP] 

has occurred, exists, or is to be taken which requires corrective action,” it shall 

report the determination together with any findings or recommendations to the 

Board, the agency involved, and the Office of Personnel Management (OPM). If, 

after a reasonable period of time, the agency does not act to correct the PPP, OSC 

may petition the Board for corrective action. 5 U.S.C. § 1214(b)(2)(C). With 

exceptions not applicable here, 3 the Board shall order corrective action if it 

determines that OSC has demonstrated that such a PPP has occurred, exists, or is 

to be taken. 5 U.S.C. § 1214(b)(4)(A). 

¶7 In its complaint, OSC asserted that the agency’s decision to remove Cefalu

based on speech protected by the First Amendment constituted a PPP

under 5 U.S.C. § 2302(b)(12). CF, Tab 1 at 5-6. Section 2302(b)(12) states that 

a PPP occurs when an authorized employee “take[s] or fail[s] to take any other 

personnel action if the taking of or failure to take such action violates any law, 

rule, or regulation implementing, or directly concerning, the merit system 

principles contained in [5 U.S.C. § 2301].” OSC contends that the First 

Amendment is a law that implements the merit system principle found at 5 U.S.C. 

§ 2301(b)(2), which states, in relevant part, that “[a]ll employees ... should 

receive fair and equitable treatment in all aspects of personnel management ...

with proper regard for their privacy and constitutional rights.” CF, Tab 1 at 11. 

¶8 We disagree with the ALJ’s apparent conclusion that the issue that he 

decided constitutes a jurisdictional issue. See CF, Tab 10 at 1 (“I find that the 

Board does have jurisdiction and therefore the case should proceed to a resolution 

 3 The Board shall order corrective action, as described in 5 U.S.C. § 1214(b)(4)(B), in 

cases involving an alleged PPP as described in 5 U.S.C. § 2302(b)(8) or 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), or (D). 
5

on the merits.”). Rather, the Board has jurisdiction over this matter because OSC 

filed a complaint for corrective action, which it is authorized to do pursuant 

to 5 U.S.C. § 1214. See, e.g., Hugenberg v. Department of 

Commerce, 120 M.S.P.R. 381, ¶ 25 (2013) (stating that the Board has jurisdiction 

to consider allegations of a PPP under section 2302(b)(12) in the context of an 

OSC corrective action proceeding). 

¶9 Chairman Grundmann and Member Robbins issue separate decisions on the 

matter of whether the First Amendment is a law, rule, or regulation directly 

concerning the merit system principles contained in 5 U.S.C. § 2301. 

ORDER

¶10 For the reasons set forth above, we MODIFY the ALJ’s determination as to 

the jurisdictional question. This matter is now being RETURNED to the ALJ for 

further adjudication consistent with this decision. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board
SEPARATE OPINION OF CHAIRMAN GRUNDMANN

in

Special Counsel 

Ex Rel. Vincent Cefalu v. Department of Justice

MSPB Docket No. CB-1214-13-0187-T-1

The First Amendment is a law, rule, or regulation directly concerning the merit 

system principles contained in 5 U.S.C. § 2301. 

¶1 The agency argued that the First Amendment is not a law, rule, or 

regulation implementing or directly concerning the merit system principles. 

Complaint File (CF), Tab 9. In support of this argument, the agency asserted 

that: (1) the Board has held that the merit system principles are not selfexecuting; (2) the legislative history of 5 U.S.C. § 2302(b)(12) states that the 

merit system principles may not be a basis of legal action; and (3) the U.S. Court 

of Appeals for the Federal Circuit (Federal Circuit) has recognized that 

constitutional violations do not automatically give rise to prohibited personnel 

practices (PPPs) under 5 U.S.C. § 2302(b)(12). CF, Tab 9 at 8-17. 

¶2 In support of its position that the First Amendment is a law that implements 

or directly concerns the merit system principles, the Office of Special Counsel 

(OSC) asserted that: (1) Congress intended for OSC to have jurisdiction over 

unconstitutional personnel actions, and most federal circuit courts have applied 

this intent to foreclose constitutional damages claims by federal employees; (2) 

OSC has prevailed in two prior cases involving allegations that the agency’s

decision to take action against an employee in violation of his First Amendment 

rights constituted a PPP; (3) the agency has relied on OSC’s jurisdiction over 

unconstitutional personnel actions in arguing against employees’ constitutional 

claims filed in district courts; and (4) the agency’s reliance on the Board’s prior 

cases is entitled to little weight because those cases arose in the context of a 

request for regulation review. CF, Tab 8. 
2

¶3 I first must determine, by using “traditional tools of statutory construction,” 

if “Congress had an intention on the precise question at issue, [and, if so,] that 

intention is the law and must be given effect.” Chevron U.S.A., Inc. v. National 

Resources Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984); see Delverde,

SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000) (explaining that the 

“traditional tools of statutory construction” include an examination of the 

statute’s text, structure, and legislative history, as well as an application of the 

relevant canons of interpretation). I therefore begin my analysis with an 

examination of the statutory language itself. The First Amendment states: 

“Congress shall make no law respecting an establishment of religion, or 

prohibiting the free exercise thereof; or abridging the freedom of speech, or of 

the press; or the right of the people peaceably to assemble, and to petition the 

Government for a redress of grievances.” U.S. Const. amend. I. As discussed 

herein, I have also considered the relevant statutory language in 5 U.S.C. 

§§ 2301, 2302. See infra ¶ 6. 

¶4 I find that neither the Constitution, nor the Civil Service Reform Act 

(CSRA or the Act), explicitly states that a constitutional violation may be 

actionable as a PPP under section 2302(b)(12). Nevertheless, the CSRA is not 

silent in this regard. Rather, it states that it shall be a PPP for any employee to 

“take or fail to take any other personnel action if the taking of or failure to take 

such action violates any law, rule, or regulation implementing, or directly 

concerning, the merit system principles contained in section 2301 of this 

title.” 5 U.S.C. § 2302(b)(12). As noted above, one of the merit principles 

provides, in relevant part, that “[a]ll employees . . . should receive fair and 

equitable treatment in all aspects of personnel management . . ., and with proper 

regard for their privacy and constitutional rights.” 5 U.S.C. § 2301(b)(2). 

Applying a straightforward reading of this language, there is no doubt that the 

First Amendment is a law. Similarly, there is no question that the cited merit 

principle stresses the importance of an agency’s treatment of its employees vis-à-
3

vis their constitutional rights. The question, however, still remains whether the 

First Amendment either implements or directly concerns this tenet of federal 

personnel management. 

¶5 In Wells v. Harris, 1 M.S.P.R. 208, 242-43 (1979), modified on other 

grounds by Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), the Board 

declared invalid certain regulations promulgated by the Office of Personnel 

Management (OPM) on the grounds that they would necessarily require the 

commission of a PPP under 5 U.S.C. § 2302(b)(11) (1979) (current version 

at 5 U.S.C. § 2302(b)(12)).

1

 In reaching that conclusion, the Board relied on 

normal usage to define “implementing,” as used therein, as meaning “to carry 

out, accomplish, fulfill or give practical effect to, in the context of a manifest 

purpose or design to prevent conduct which directly and substantially 

‘undermines’ the merit system principles and the ‘integrity’ of the merit system.” 

Wells, 1 M.S.P.R. at 243. Recognizing that it would be hard to find a law more 

clearly designed to give effect to merit system principle (b)(6) than the law at 

issue there, 5 U.S.C. § 4303(a), the Board found it unnecessary to consider what 

the term “directly concerning” encompasses. Wells, 1 M.S.P.R. at 242. 

¶6 But it is noteworthy that, in construing section 2302(b)(11), the Board 

looked for general guidance to section 3(2) of the Act, 2 setting forth Congress’ 

findings and statement of purpose, that PPPs should be defined so as to prevent 

“‘conduct which undermines the merit system principles and the integrity of the 

merit system.’” Wells, 1 M.S.P.R. at 242. I also recognize that the Board has 

subsequently opined that a constitutional provision cannot be a law within the 

meaning of section 2302(b)(12). See Radford v. Office of Personnel 

Management, 69 M.S.P.R. 250, 255 n.3 (1995); Pollard v. Office of Personnel 

Management, 52 M.S.P.R. 566, 570 n.3 (1992). In both instances, without any 

 1 Subsection (b)(11) was redesignated as subsection (b)(12) in 1998. 

2 See 5 U.S.C. § 1101 note.
4

explanation, the Board summarily concluded that “the constitutional provision 

which the merit system[] principle in section 2301(b)(2) incorporates cannot, of 

course, be both the merit system[] principle and the violated law, rule or 

regulation which implements or directly concerns the merit system[] principle.” 

Despite the “of course,” there is nothing obvious about this observation. Rather, 

in Wells, the Board determined that “laws” for purposes of section 2302(b)(11) 

could encompass those that were enacted previous and subsequent to the passage 

of the CSRA, as well as the provisions of the Act itself. Wells, 1 M.S.P.R. at 

242. Thus, the mere fact that the Constitution was ratified prior to enactment of 

the CSRA and not expressly for the purpose of carrying out or addressing the 

statutory merit system principles does not render it outside the scope of section 

2302(b)(12). 

¶7 It is true, however, that in Special Counsel v. Harvey, 28 M.S.P.R. 595, 

601-02 (1984), rev’d on other grounds, 802 F.2d 537 (D.C. Cir. 1986), the Board 

limited the definition of “implementing” adopted in Wells to apply to statutes that 

prescribe “processes and procedures that were deliberately designed to 

accomplish a specific result.” It is apparent that the First Amendment reasonably 

can be construed as prescribing procedures designed to ensure the freedoms 

established therein. As such, I conclude that the First Amendment is not a law 

“implementing” a merit system principle, the violation of which would give rise 

to a PPP under section 2302(b)(12). 

¶8 Yet, the question remains as to whether the First Amendment “directly 

concerns” a merit system principle. In Harvey, the Board addressed the meaning 

of “directly concerns” in section 2302(b)(12) for the first time. There, the 

Special Counsel brought various PPP charges against the respondent a Senior 

Executive Service (SES) manager, including that he violated section 2302(b)(12) 

by idling a subordinate SES employee in contravention of 5 U.S.C. § 3131(7). 

Section 3131(7) required that the SES be administered to protect senior 

executives from arbitrary and capricious actions. The case thus presented the 
5

issue as to whether section 3131(7) implemented or directly concerned a merit 

system principle. Because that provision did not prescribe the types of processes 

or procedures as necessary to find that it implemented a merit system principle, 

the Board went on to determine whether it directly concerned such principles. 

The Board found that it did, and in doing so, looked to the purpose of section 

2302(b)(12) as reflected in the CSRA’s legislative history, “to make unlawful 

those actions which are inconsistent with merit principles, but which do not fall 

within the . . . [other] categories of personnel practices.” Harvey, 28 M.S.P.R. at 

602. As the Board noted, “[t]oo technical a reading of paragraph [(b)(12)] would 

defeat its purpose.” Id. The Board found no significance in the ultimate 

adoption of the term “concerning” rather than “relating to,” which appeared in 

another version of the bill, insofar as both terms have essentially the same 

meaning. It found that the insertion of the word “directly” “warrants the 

conclusion that if a law does not ‘implement’ the merit principles, its connection 

to the merit principles must be clear.” Id. at n.13. 

¶9 However, the Board did not in Harvey, or elsewhere, define or restrict the 

nature of the connection between the law and the merit system principles for 

purposes of section 2302(b)(12). The dictionary broadly defines “connection” as 

“association” or “relationship.” Given the patent link between the First 

Amendment and the merit system principle that the federal service be managed 

with proper regard for employees’ constitutional rights, I find that a plain reading 

of the statutory language compels the conclusion that the First Amendment is a 

law directly concerning section 2301(b)(2).

¶10 The agency has asserted that there are several cases in which the Board has 

impliedly or expressly held that an alleged constitutional violation does not 

constitute a PPP. See CF, Tab 9 at 10-16; Radford, 69 M.S.P.R. at 254-55; 

Pollard, 52 M.S.P.R. at 569-70 & n.3; Wells, 1 M.S.P.R. at 215. However, these 

cases are largely relevant only to prove that the merit principles are not 

self-executing and that section 2302(b)(12) requires a two-step analysis, i.e., a 
6

finding that the action violates a law and that the law implements or directly 

concerns a merit system principle. Wells, 1 M.S.P.R. at 215. There is no dispute 

that the statute requires this two-step analysis in order to find a PPP under section 

2302(b)(12). 3

¶11 Thus, I find the agency’s reliance on Wells, Pollard, and Radford to be 

unpersuasive. With the exception of the aforementioned unexplained footnotes in 

Pollard and Radford, those cases primarily concern the Board’s application of the 

two-step analysis to section 2302(b)(12) claims, an approach that is not at issue 

here. Again, there seems to be an unstated assumption underlying the agency’s 

position that making a constitutional violation actionable as a PPP under section 

2302(b)(12) somehow conflates the two-step analysis into a claim of a direct 

violation of section 2301(b)(2). But regardless of any perceived circularity, there 

is no question that the First Amendment is a law directly concerning a merit 

system principle, and as such, its violation should be actionable as a PPP under 

section 2302(b)(12). 

¶12 Furthermore, OSC has identified cases in which the Board implicitly found 

that an agency’s action that violates an employee’s or applicant’s First 

Amendment rights constitutes a PPP. See CF, Tab 8 at 12-14 (citing Moredock v. 

Department of Justice, No. 02-3258, 2003 WL 26098542 (Fed. Cir. Jan. 10, 

2003); Special Counsel v. Environmental Protection Agency, 79 M.S.P.R. 542

(1998), aff’d sub nom. Hubbard v. Merit Systems Protection Board, 205 F.3d 

1315 (Fed. Cir. 2000)). Prior Board decisions have implicitly, if not explicitly, 

reflected support for finding that a First Amendment violation is actionable as a 

PPP under section 2302(b)(12). For example, in Special Counsel v. 

Environmental Protection Agency, the Special Counsel brought a complaint 

against the agency charging it with violating section 2302(b)(11) when it failed to 

 3 I agree, however, that the fact that Wells, Pollard, and Radford arose in the context of 

the Board’s review of regulations is not sufficient to distinguish them on the issue 

presented here.
7

select an applicant in violation of his First Amendment rights. While the issue on 

review concerned the applicant’s entitlement to back pay and did not focus on the 

merits of the underlying PPP, it is still relevant to the issue present here. 

Specifically, the Board not only found no error in the ALJ’s finding that the 

agency violated section 2302(b)(11) when it did not select the applicant in 

violation of his First Amendment rights but affirmatively adopted that finding. 

Id. at 546. In addition, in Special Counsel v. Lynn, 29 M.S.P.R. 666, 667 (1986), 

the Special Counsel filed a complaint against two individuals for removing 

another employee because of conduct protected under the First Amendment in 

violation of then-section 2302(b)(11). The Special Counsel ultimately moved to 

dismiss the complaint because the employing agency disciplined the individuals 

for the same misconduct giving rise to the complaint. In the decision granting 

that request, the Board did not challenge whether the constitutional violation 

could be actionable as a PPP.

¶13 I also have considered OSC’s discussion of various federal circuit court 

decisions, which have held that federal employees who seek damages for 

constitutional claims against their employers arising from their employment are 

prohibited from pursuing those claims in federal court; instead, the exclusive 

mechanism for such claims is through the CSRA. CF, Tab 8 at 15-18; see 

Irizarry v. United States, 427 F.3d 76, 77-78 (1st Cir. 2005); Robbins v. 

Bentsen, 41 F.3d 1195, 1201-03 (7th Cir. 1994); Volk v. Hobson, 866 F.2d 1398, 

1400-04 (Fed. Cir. 1989); McIntosh v. Turner, 861 F.2d 524, 526 (8th Cir. 1988). 

Some of these circuit court decisions state that an alleged constitutional violation 

constitutes a PPP, or they otherwise reference the PPP described in 5 U.S.C. 

§ 2302(b)(12) or the merit system principle at 5 U.S.C. § 2301(b)(2). See, e.g.,

Ferry v. Hayden, 954 F.2d 658, 661 & n.4 (11th Cir. 1992); Saul v. United 

States, 928 F.2d 829, 834 (9th Cir. 1991); Petrini v. Howard, 918 F.2d 1482, 

1484 (10th Cir. 1990); Spagnola v. Mathis, 859 F.2d 223, 225 n.3 (D.C. Cir. 

1988) (en banc). However, with the exception of the Volk decision, these circuit
8

court decisions are persuasive but not controlling authority for the Board. Fairall 

v. Veterans Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 

1987). In addition, none of the aforementioned appeals, including Volk, required 

a resolution of the technical issue before us now on interlocutory appeal. 

¶14 Member Robbins disagrees claiming that it “broadly expands the scope of 

the Board’s jurisdiction . . . to consideration and application of constitutional 

law.” Member Robbins’ Separate Opinion (Sep. Op.), ¶ 2. However, his view of 

the Board’s existing authority to adjudicate constitutional claims, and hence his 

criticism of my position as an unwarranted expansion of that authority, is not 

supported by precedent. It is true that the Board has consistently adhered to the 

principle that, as an administrative agency, it lacks authority to review challenges 

to the constitutionality of statutes. 4

 See MacLean v. Department of Homeland

 4 I believe that my colleague’s reliance on Elgin v. Department of the Treasury, 132 S. 

Ct. 2126 (2012), to support his theory that “the Board has long avoided independent 

analysis of constitutional claims” is misplaced. Sep. Op., ¶ 5. Mr. Elgin had filed an 

appeal to the Board challenging his removal from federal service, effected pursuant to 

5 U.S.C. § 3328, which bars individuals from federal employment who knowingly and 

willfully fail to register for the Selective Service. Elgin, 132 S. Ct. at 2131. The 

Board’s ALJ dismissed the appeal for lack of jurisdiction, in pertinent part, on the 

ground that the Board lacks the authority to rule upon the constitutionality of a statute. 

Id. Elgin did not petition for review of this ruling to the full Board or the Federal 

Circuit, but, instead, filed in district court, joining his case with other plaintiffs. Id. 

The government sought to dismiss the cases on the grounds that the CSRA provided the 

exclusive remedial scheme for adjudicating the plaintiffs’ claims, including their facial 

challenge to the constitutionality of 5 U.S.C. § 3328. Elgin, 132 S. Ct. at 2131. 

The case ultimately reached the U.S. Supreme Court, which held that the CSRA 

precluded district court jurisdiction over the petitioners’ challenge to the 

constitutionality of the statute. Id. at 2134. In its decision, the Court addressed, inter 

alia, the petitioners’ argument that such a holding left them with no meaningful 

recourse for review because the Board lacked authority to declare a federal statute 

unconstitutional. Id. at 2136. It was in this context that the Court noted both the 

Board’s longstanding refusal to pass upon the constitutionality of legislation, as well as 

its own previous statements acknowledging that adjudication of such issues is generally 

beyond the jurisdiction of administrative bodies. Id. Declining to decide whether the 

Board’s view of its authority was correct, or even whether the “oft-stated principle that 

agencies cannot declare a statute unconstitutional is truly a matter of jurisdiction,” the 

Court found that, regardless, the CSRA provided the exclusive remedial scheme for the 
9

Security, 116 M.S.P.R. 562, 573-74 (2011), rev’d on other grounds, 714 F.3d 

1301 (2013), cert. granted, 134 S. Ct. 2290 (2014); Malone v. Department of

Justice, 14 M.S.P.R. 403, 406 (1983). Yet, the Board has also long recognized 

the distinction between authority to declare a statute unconstitutional and “its 

authority to adjudicate a constitutional challenge to an agency’s application of a 

statute.” May v. Office of Personnel Management, 38 M.S.P.R. 534, 538 (1988) 

(deciding to address whether the agency’s termination of the appellant’s annuity 

without adequate notice is consistent with fundamental concepts of due process). 

¶15 Indeed, far from evidencing a disinclination to review constitutional 

challenges to agency actions, the holdings in Wigen v. U.S. Postal 

Service, 58 M.S.P.R. 381, 383 (1993), and Delk v. Department of the 

Interior, 57 M.S.P.R. 528, 530 (1993), cited by Member Robbins, are plainly 

predicated on the Board’s exercise of jurisdiction to adjudicate such claims. The 

issues in those cases concerned, respectively, the application of the constitutional 

doctrines relating to the exclusion of evidence and prohibition against double 

jeopardy. While ultimately finding that these doctrines did not afford the 

appellants the protections claimed thereunder, the Board did not express any 

doubt as to its authority to reach and rule upon those claims.

¶16 Similarly, in Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 684 

n.12 (1991), the Board explicitly recognized that, even where an agency’s action 

was authorized within the meaning of 5 U.S.C. § 7701(c)(2)(C), the Board will 

nonetheless not sustain an action taken in violation of an employee’s 

constitutional rights. In support, the Board cited numerous cases wherein it 

“adjudicated, as an independent affirmative defense, nonprobationary employees’ 

 

petitioners’ facial challenge to the constitutionality of the statute barring their 

employment. Id. at 2136-37. In fact, in reaching that conclusion, the Court cited many 

instances in which the Board had adjudicated constitutional challenges to agency 

actions and deemed any distinction under the CSRA between the adjudication of these 

claims and those raising facial challenges to the constitutional validity of a statute to be 

“dubious at best.” Id. at 2136 n.5.
10

constitutional challenges to appealable actions effected under statute or 

regulation.” Stephen, 47 M.S.P.R. at 684 n.12 (citing Cooper v. U.S. Postal

Service, 42 M.S.P.R. 174, 178 (1989) (upholding the admissibility of the 

appellant’s custodial statement upon determining that the appellant had been 

advised of and had waived his Fifth Amendment rights under Miranda), aff’d,

904 F.2d 46 (Fed. Cir. 1990) (Table); Sternberg v. Department of

Defense, 41 M.S.P.R. 46, 51 (1989) (reviewing the claim that the agency illegally 

searched the employee in violation of the Fourth Amendment); Wentzel v. 

Department of the Interior, 33 M.S.P.R. 344, 352-53 (determining whether the 

employee’s speech was protected by the First Amendment), aff’d, 837 F.2d 1097 

(Fed. Cir. 1987) (Table); Svejda v. Department of the Interior, 7 M.S.P.R. 108, 

111 (1981) (holding that constitutional due process applies to a nonprobationary 

employee’s removal from federal employment)); see Chisolm v. U.S. Postal

Service, 7 M.S.P.R. 116, 119 (1981) (determining the admissibility of the 

appellant’s statement under the Fifth Amendment).

¶17 Thus, while the Board has “steered clear” of reviewing facial challenges to 

the constitutional validity of federal statutes, our precedent and history simply do 

not support the conclusion that the Board has generally declined jurisdiction to 

review claims that an agency action violated an appellant’s constitutional rights. 

¶18 The Member charges that it “trivializes our Constitution” to recognize the 

Board’s statutory jurisdiction to adjudicate constitutional claims either as 

affirmative defenses to adverse actions or in the context of our role under the 

CSRA’s scheme for correcting PPPs in the federal civil service. The criticism 

seems tacitly grounded on the premise that the only laws covered under section 

2302(b)(12) are those enacted for the specific purpose of implementing the merit 

system principles. However, as argued elsewhere in this opinion, such a 

construction of section 2302(b)(12) essentially renders meaningless the other 

category of laws covered, i.e., those “directly concerning” the merit system 

principles. In this, I simply disagree with my colleague that viewing the 
11

Constitution as “directly concerning” not only the bedrock principles of equal 

treatment and fairness, but, specifically, the principle that the federal government 

administer its personnel system with due regard for the constitutional rights of its 

employees, diminishes the import of that document. Likewise, unlike my 

colleague, I do not see the “intriguing possibilities” that would ensue from 

recognizing the Board’s statutory authority—whether in adjudicating chapter 75 

affirmative defenses or remedying PPPs—to consider whether an agency action 

was taken in violation of an employee’s First Amendment rights. 

¶19 Finally, I have considered the parties’ remaining arguments but none 

change the outcome. 5

 Based on my review of the statutory language, legislative 

history, and relevant precedent, I conclude that the First Amendment is a law, 

rule, or regulation that directly concerns merit system principles. 

______________________________

Susan Tsui Grundmann

Chairman

 5 I have also considered the Supreme Court’s recent decision in Lane v. Franks, 134 S. 

Ct. 2369 (2014). There, the Court determined that the First Amendment protects a 

public employee who provided truthful sworn testimony, compelled by subpoena, 

outside the course of his ordinary job responsibilities. Lane, 134 S. Ct. at 2372-74. I 

find that the Court’s discussion of relevant First Amendment principles and its holding 

in Lane does not affect my analysis of the narrow statutory construction issue before us 

on interlocutory appeal.
SEPARATE OPINION OF MEMBER MARK A. ROBBINS

in

Special Counsel 

Ex Rel. Vincent Cefalu v. Department of Justice

MSPB Docket No. CB-1214-13-0187-T-1

¶1 I concur that the Board has jurisdiction over this matter. 

¶2 I respectfully disagree with Chairman Grundmann’s Separate Opinion (Sep. 

Op.) that the First Amendment to the U.S. Constitution is a law, rule, or 

regulation directly concerning the merit system principles contained in 5 U.S.C. 

§ 2301. Such a view potentially trivializes our Constitution, and is contrary to 

Board precedent. It broadly expands the scope of the Board’s jurisdiction, along 

with that of the Office of Special Counsel (OSC), to consideration and 

application of constitutional law, best left to Article III courts. 

¶3 On a superficial level, the U.S. Constitution is a law. It, along with 

treaties, comprises the supreme law of the land. U.S. Const. Article VI. But to 

reduce the Constitution to the nature of a codified statute, which I believe is what 

was anticipated in Title 5 and subsequent case law requirements for enforcement 

of a merit system principle as a prohibited personnel practice (PPP), demeans the 

true nature of our Constitution. As the Preamble states, it was established “to 

form a more perfect Union, establish Justice, insure domestic Tranquility, provide 

for the common defense, promote the general Welfare, and secure the Blessings 

of Liberty[.]” Notably missing here is any mention of enforcing a merit system 

principle as a PPP. 

¶4 The Chairman’s Separate Opinion is a fair discussion and concession (as I 

too concede) of the close-call nature of the arguments presented by both the 

agency and OSC. Nonetheless, the Board has long implied or expressly held that 

an alleged constitutional violation does not constitute a PPP. The Chairman’s 
2

Separate Opinion simply disagrees with precedent and decides to move in a 

completely different direction. 

¶5 As the U.S. Supreme Court noted in Elgin v. Department of the 

Treasury, 132 S. Ct. 2126, 2130 (2012), the Board has long avoided independent 

analysis of constitutional claims. 1 The main exception is in the context of 

constitutional due process where the Supreme Court and our reviewing court have 

made clear that this constitutional right must be applied when taking an adverse 

action against a public employee, because specific statutes create a property 

interest in employment. See Gilbert v. Homar, 520 U.S. 924 (1997); Cleveland 

Board of Education v. Loudermill, 470 U.S. 532 (1985); Stone v. Federal Deposit 

Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). 

¶6 Otherwise, the Board has generally steered clear of reviewing 

constitutional claims. See, e.g., Wigen v. U.S. Postal Service, 58 M.S.P.R. 381, 

383 (1993) (and cases cited therein) (the constitutional prohibition against double 

jeopardy applies only to defendants in criminal cases, not to petitioners in 

administrative proceedings before the Board); Delk v. Department of the 

Interior, 57 M.S.P.R. 528, 530-31 (1993) (and cases cited therein) (finding that 

the Supreme Court’s decisions regarding the application of the exclusionary rule 

to proceedings other than criminal prosecutions do not provide a basis on which 

 1 The Chairman’s lengthy discussion of Elgin (Sep. Op. n.4) misses my point, namely, 

that administrative bodies avoid deciding constitutional issues absent jurisdiction being 

expressly granted in statute or judicial opinion, as due process is for the Board. While 

not deciding the matter in Elgin, I find it instructive for the Supreme Court to have 

outlined a process that accommodates our constraint by noting that the Board is able to 

identify constitutional issues, gather the appropriate underlying facts, and pass the 

record up to the U.S. Court of Appeals for the Federal Circuit wherein lies the authority 

to consider and decide constitutional issues. And the argument that the Court found 

“dubious,” Elgin, 132 S. Ct at 2136 n.5—the petitioners’ assertion that challenging an 

agency’s actions on constitutional grounds is distinct from challenging the 

constitutionality of the statute upon which those actions were taken—is not an issue in 

the present case. 
3

to extend the exclusionary rule to Board proceedings) 2; May v. Office of 

Personnel Management, 38 M.S.P.R. 534, 538 (1988) (holding that the Board is 

without authority to determine the constitutionality of federal statutes); but see

Wiley v. Department of Justice, 89 M.S.P.R. 542, 545, ¶ 5 (2001) (the Board 

reviewed whether searching a government employee’s private property was 

subject to Fourth Amendment restraints). 

¶7 I recognize a Fifth Amendment Miranda warning is required when an 

employee is subjected to a custodial interrogation. However, this is necessary 

only when, during the administrative investigation, the employee must avoid 

discussing the charged misconduct (always criminal in nature) because he is 

trying to protect himself against a self-incriminating disclosure that he reasonably 

believes could be used later in his own criminal prosecution or could lead to other 

evidence that might be so used. See Kastigar v. United States, 406 U.S. 441, 

444–45 (1972); Weston v. U.S. Department of Housing and Urban 

Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983); Tannehill v. Department of 

the Air Force, 58 M.S.P.R. 219, 222 (1993). Thus, the constitutional claim in 

such cases is relevant only because of a possible criminal conviction, not as 

protection against potential administrative adverse action. 

¶8 To the specific constitutional issue presented in the instant case, the Board 

has previously declined to go where the Chairman’s Separate Opinion now takes 

us. In Wells v. Harris, 1 M.S.P.R. 208, 215 (1979), modified on other grounds by

Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), the Board noted that the 

legislative history of the merit system principles indicates that the principles were 

 2 I do not understand the Chairman’s assertion that the Wigen and Delk decisions “are 

plainly predicated on the Board’s exercise of jurisdiction to adjudicate such claims.” 

Sep. Op., ¶ 15. In both cases the Board noted and affirmed decisions below that did not 

apply the appellants’ constitutional claims, noting that, as an administrative body, 

double jeopardy and the exclusionary rule are outside the Board’s purview. Holding 

such is certainly not an assertion of jurisdiction over the substance of the constitutional 

claims under other sets of facts. 
4

“stated in hortatory terms” and were “not self-executing.” The Board delineated 

a two-step analysis for establishing that an agency’s action constituted a PPP 

under section 2302(b)(12): (1) the action violates a law, rule, or regulation; and 

(2) the violated law, rule, or regulation is one that implements or directly 

concerns the merit system principles. Wells, 1 M.S.P.R. at 215. 

¶9 In Pollard v. Office of Personnel Management, 52 M.S.P.R. 566, 569-70 

& n.3 (1992), the Board discussed the Wells decision, and rejected the appellant’s 

equal protection clause challenge to an OPM rule because he had not identified 

any law, rule, or regulation implementing or directly concerning the merit system 

principle at section 2301(b)(2). The Board specifically noted in Pollard that “the 

constitutional provision which the merit systems [sic] principle in 

section 2301(b)(2) incorporates cannot, of course, be both the merit systems [sic] 

principle and the violated law, rule or regulation which implements or directly 

concerns the merit systems [sic] principle.” Pollard, 52 M.S.P.R. at 570 n.3. 

¶10 Similarly, the Board considered, in Radford v. Office of Personnel 

Management, 69 M.S.P.R. 250, 254-55 (1995), an appellant’s assertion that 

implementation of an OPM regulation would require the commission of a PPP 

under section 2302(b)(12) by violating his constitutional right to equal protection. 

The Board found his assertion unavailing in part because the constitutional 

provision did not constitute a law, rule, or regulation implementing or directly 

concerning the merit system principles in section 2301(b)(2). 69 M.S.P.R. at 255

& n.3. 3

 

 3 Regarding both Pollard and Radford, the Chairman’s Separate Opinion criticizes the 

Board for having summarily concluded this proposition without explanation, noting that 

“[d]espite the ‘of course,’ there is nothing obvious about this observation.” Sep. Op.,

¶ 6. And yet, a few paragraphs later the opinion similarly concludes that “the patent 

link between the First Amendment and the merit principle . . . compels the conclusion 

that the First Amendment is a law directly concerning section 2301(b)(2).” Sep. Op.,

¶ 9. 
5

¶11 Moreover, the Federal Circuit has recognized that constitutional violations 

do not automatically give rise to PPPs under 5 U.S.C. § 2302(b)(12). See Price v. 

Social Security Administration, 398 F.3d 1322, 1326 (Fed. Cir. 2005). In Price, 

the petitioner argued that, because the Board found her due process rights 

had been violated, the agency thereby committed a PPP. Id. The Federal Circuit 

rejected outright the argument that denying constitutional due process rights 

automatically gives rise to a PPP. Id. While Price arose in the context of a 

request for attorney fees and not a corrective action case, it is significant because, 

had the Federal Circuit accepted the petitioner’s argument, it would have 

acknowledged either that the merit system principles are self-executing, or that 

the Constitution is, in fact, a law, rule, or regulation that directly concerns that 

merit principle. The Court declined to do either. 

¶12 Further supporting the Board’s traditional view of its limited role in its 

consideration of constitutional claims, the Federal Circuit has taken it upon itself 

to address such claims even when they are raised for the first time before the 

court, rather than to remand to the Board for consideration and exhaustion. See

Sarvasova v. Office of Personnel Management, 126 F. App’x 954 (Fed. Cir. 

2005); Beard v. General Services Administration, 801 F.2d 1318, 1321 

(Fed. Cir. 1986). 

¶13 The Chairman agrees with OSC that the Board has implicitly found that an 

agency action that violates an employee’s or applicant’s First Amendment rights 

constitutes a PPP. See CF, Tab 8 at 12-14 (citing Moredock v. Department of 

Justice, No. 02-3258, 2003 WL 26098542 (Fed. Cir. Jan. 10, 2003); Special 

Counsel v. Environmental Protection Agency, 79 M.S.P.R. 542 (1998), aff’d sub 

nom. Hubbard v. Merit Systems Protection Board, 205 F.3d 1315 (Fed. Cir. 

2000)). These cases, however, are easily distinguishable. 

¶14 In Special Counsel v. Environmental Protection Agency, 79 M.S.P.R. 

at 555, the Board denied OSC’s request for corrective action in the form of back 

pay and monetary damages. In so doing, we noted in the background that in 
6

Hubbard v. Environmental Protection Agency, 982 F.2d 531, 532 (D.C. 

Cir. 1992), the court had affirmed the U.S. District Court’s finding that the 

agency’s failure to hire Mr. Hubbard violated his First Amendment rights. But 

the nature of the PPP in question was not a contested or dispositive issue before 

the Board. 

¶15 In Moredock, 2003 WL 26098542, at *1, the Federal Circuit recited4 that 

the chief ALJ granted OSC’s request for corrective action upon finding that the 

agency committed a PPP when it removed Mr. Moredock in violation of his free 

speech rights, the parties entered into a settlement agreement to resolve how the 

agency would comply with the chief ALJ’s order, and the Board dismissed the 

appeal as settled. Under these circumstances, there was no need for the Board to 

address, let alone discuss, the chief ALJ’s findings. To the extent that OSC 

asserts that the Board “implicitly” acknowledged subject matter jurisdiction in 

Moredock by enforcing the agreement, CF, Tab 8 at 14, jurisdiction is a separate 

issue from OSC’s legal theory for seeking corrective action for a PPP 

under 5 U.S.C. § 2302(b)(12). 

¶16 The present case involves the First Amendment, but the Chairman’s 

rationale and the interlocutory order of the ALJ are not so limited. The Board is 

potentially inviting every adverse action to be turned into a consideration and 

determination of an appellant’s constitutional rights, either by way of an OSC 

investigation, or as an affirmative defense raised in an appeal to the Board. Even 

a quick review of the Constitution raises some intriguing possibilities for creative 

constitutionally-based affirmative defenses. 

 4 The Board did not issue a published decision in this matter, so I rely on the Federal 

Circuit’s discussion of this background information. 
7

¶17 In the absence of any specific authority that requires us to modify or 

overrule our Wells/Pollard/Radford line of cases, I do not believe that provisions 

of the U.S. Constitution equate to laws, rules, or regulations that implement or 

directly concern the merit system principles. 

______________________________

Mark A. Robbins

Member